Keshardeo Chamria v. Radha Kishen Chamria — 1948 DIGILAW 2 (CAL)

JUDGMENT Das, J. - This is an appeal from the judgment and decree of McNair, J., passed on the 7th day of May, 1941. The Appellant is Keshardeo Chamria who was one of the Defendants in the suit. The material facts may be shortly stated as follows:-- In January, 1929, Keshardeo Chamria claiming to be the adopted son of one Amolakchand and as such a member of the joint family consisting of himself, Rampratap Chamria and the latter's infant grandson Ratanlal Chamria filed Suit No. 183 of 1929 in this Court for partition, accounts and other reliefs' against Rampratap and Ratanlal. On the 23rd 7th May, 1941, passed in the exercise of Ordinary Original Civil Jurisdiction May, 1930, a consent decree was made in that Suit in accordance with certain terms of settlement. By cl. (1) of the terms of settlement Keshardeo was declared as the validly adopted son of Amolakchand. Cl. (2) provided that a sum of Rs. 11 lacs would be set apart and allotted to Rampratap, that premises No. 178, Harrison Road and No. 71, Cross Street were dedicated for charitable and religious purposes and that the residue would be divided between Rampratap and Keshardeo in equal shares. Cl. (4) provided as follows:-- The house and premise No. 178, Harrison Road and No. 71, Cross street are declared as dedicated from the 27th August 1917 for religious and Chartable purposes, the trustees hereby nominated being Rai Ramprotap Chamria Bahadur, Keshardeo Chamria, Rai Badridas Goenka Bahadur and Radha Kissen Chamria. The trustees shall not be more than seven nor be less than four. The trust is named, "The Gorakhram Ramprotap Trust. The expenses of worship at the temple of Govindji, of the Sanskrit Pathsala and of the well and garden at Fatehpur and of the water works at Fatehpur in Shikar and other expenses of other charitable objects in the discretion of the trustees will be paid out of the income of the trust property. A deed of trust will be executed by the parties. 2. The rest of the terms of settlement is not material for the present appeal. 3. On the 8th December, 1934, a deed (hereinafter called the deed of 1934) was executed by Rampratap, Keshardeo and Sm. Kamala Sethani as the mother and natural guardian of Ratanlal. This deed contains six recitals. 2. The rest of the terms of settlement is not material for the present appeal. 3. On the 8th December, 1934, a deed (hereinafter called the deed of 1934) was executed by Rampratap, Keshardeo and Sm. Kamala Sethani as the mother and natural guardian of Ratanlal. This deed contains six recitals. The first one recites that on the 27th August, 1917, Rampratap had declared that the premises No. 178, Harrison Road and No. 71, Cross Street which had been acquired and built by him would be held for religious and charitable purposes and in particular for the benefit of certain religious and charitable institutions established by him and set out thereunder. The second and third recitals refer to the institution of Suit No. 183 of 1929 by Keshardeo and the consent decree made therein on the 23rd May, 1930. The fourth recital purports to set out cl. (4) of the terms of settlement. The fifth recital enumerates certain additional properties as also forming part of the said trust. The last recital avers that "it is necessary that a formal scheme should be framed to carry out the trust." Then begins the operative part of the deed with the words: "Now we declare as follows:--." The operative part consists of 24 clauses grouped under eight headings. Cl. (1) sets out the name of the trust as "Gorakhram Ramprotap Trust." Cl. (2) is the interpretation clause. It defines "Trustees" as meaning "the Board of Trustees for the time being of Gorakhram Ramprotap Trust" and "Trust properties" as meaning "the premises No. 178, Harrison Road and No. 71, Cross Street in the town of Calcutta, the properties set out above and any other property or properties that may be held for the time being for the trust." Cl. (5) enumerates the various objects of the trust. Cl. (4) which is under the heading "Institutions" provides that all properties, assets and institutions shall be held established and managed in the name of Gorakhram Ramprotap Trust. Cl. (5) prescribes the powers of the Board of Trustees. Under heading the "The number of Trustees" there are two clauses, namely, cls. (6) and (7). Cl. (d) provides that the number of trustees shall not be less than four or more than seven. Cl. Cl. (5) prescribes the powers of the Board of Trustees. Under heading the "The number of Trustees" there are two clauses, namely, cls. (6) and (7). Cl. (d) provides that the number of trustees shall not be less than four or more than seven. Cl. (7) is as follows:-- Besides the said Ramprotap Chamria and Keshardeo Chamria the following shall be the first trustees : (1) Sir Badridas Goenka, (2 Radha Kissen Chamria, (3) Nandlal Bhowalka, (4) Shym Sundar Kanodia, (5) Juthalal Baiti. 4. It will be remembered that the first four out of the seven named persons, namely, Ramprotap, Keshardeo, Sir Badridas Goenka and Radha Kissen Chamria were already mentioned as four trustees in cl. (4) of the consent decree in Keshardeo's partition suit. The seventh clause of the deed, therefore, brings up the number of trustees to seven by appointing three new trustees. Cls. (8) to (16) are grouped under the heading "Appointment, Retirement and Removal of Trustees." Cl. (8) confers power on Ramprotap and Keshardeo to nominate their respective successors in office and provides that in the absence of such appointment the seniormost male member amongst their respective descendants shall act in their respective places. Clauses 17 to 24 regulate "Meetings and procedure of Trustees." Clause 17 enjoins that at least one meeting shall be held once every four months. The rest of the clauses needs no special mention. 5. Meetings of the Board of Trustees were held from time to time each of which was attended, amongst others, by Keshardeo or his duly authorised representative. At the first meeting held on the 17th August, 1935, Keshardeo proposed and it was unanimously resolved that Ramprotap be elected President of the Board of Trustees for 1935. The meeting was then adjourned till the 19th August, 1935. At the adjourned meeting Keshardeo proposed that in terms of clause 15 of the deed of 1934 a Managing Trustee should be appointed for the year 1935 and that Radha Kissen Chamria should be so appointed. A counter suggestion was made that Ramprotap be appointed Managing Trustee to which Keshardeo objected. Radha Kissen was thereupon elected the Managing Trustee for the rest of the year with effect from the 1st September, 1935. At this meeting Keshardeo also suggested that accounts up-to-date should be taken from Ramprotap under certain specified heads including cash balance, bank balance and investments. Radha Kissen was thereupon elected the Managing Trustee for the rest of the year with effect from the 1st September, 1935. At this meeting Keshardeo also suggested that accounts up-to-date should be taken from Ramprotap under certain specified heads including cash balance, bank balance and investments. At the second meeting held on the 6th August, 1936, Keshardeo took certain preliminary objections based on clause 7 of the deed. At the third meeting held on the 13th September, 1936, Ramprotap was elected President and Radha Kissen the Managing Trustee for the rest of the year 1936. The fourth meeting was held on the 27th September, 1936, when at the instance of Keshardeo's representative Ramprotap was directed to produce the title deeds and papers relating to the trust at the next meeting. Keshardeo's representative also insisted that accounts from the very beginning upto the date of taking over charge by Radha Kissen should be submitted and that Ramprotap should forthwith hand over the cash balance, bank balance and the investments of the trust to the trustees. It was resolved that Ramprotap should produce before the trustees within three months whatever accounts be wanted to submit. At the fifth meeting held on the 31st December, 1936, Ramprotap produced abstract of accounts from the 9th May, 1929, to the 31st August, 1935, the title deeds, Government Securities of the face value of Rs. 1,30,000 standing in his name and Rs. 3,250 out of the bank balance of Rs. 3,265-8-3. The following resolution, amongst others, was passed at that meeting:-- it is resolved that the Trust Deed should be registered in the Public Debt Office and if necessary the signature of the present Trustees be recorded there, It is further resolved that the above securities if and when necessary will be dealt with by three of the Trustees and interest drafts when issued will be credited in the name of Gorakhram Ramprotap Trust. The securities will be kept at the Trust Office and held in the name of the trust or in the name of three of the trustees in such manner as the Public Debt Office will think fit. The managing Trustee will put himself in communication with the Public Debt office to that Offect and will inform the other Trustees as to the result of such communication. 6. On the 16th January, 1937, Ramprotap died leaving his grandson Ratanlal. The managing Trustee will put himself in communication with the Public Debt office to that Offect and will inform the other Trustees as to the result of such communication. 6. On the 16th January, 1937, Ramprotap died leaving his grandson Ratanlal. Although it is not clear whether Ramprotap nominated Ratanlal as his successor in office or Ratanlal became a trustee as the seniormost male member of Ramprotap's family in terms of clause 8 of the deed of 1934, the fact remains that Ratanlal acted as a trustee in the place of Ramprotap and attended all the meetings of the Board of Trustees held after the death of Ramprotap. 7. The letter from the Public Debt Office dated the 13th January, 1937, was considered at the 6th meeting held on the 14th February, 1937, and the Managing Trustee was asked to take necessary steps. On the 29th September, 1937, the Board sanctioned the expenditure of Rs. 50,000 for converting the Middle English School at Fatehpur into a High English School. 8. On the 7th December, 1937, Keshardeo alleging that he had executed the Deed of 1934, on the faith of an agreement that Ramprotap would do certain things (which are also mentioned in paragraphs 5 and 6 of his written statement in the suit out of which the present appeal has arisen) instituted a suit (being Suit No. 1869 of 1937) against Ratanlal in this Court claiming specific performance of the alleged agreement or alternatively a declaration that the Deed of 1934 was void and cancellation thereof. 9. At the 12th meeting of the Board held on the 30th June, 1939, the Managing Trustee reported that the cost of the buildings for the High English School would come up to Rs. 70,000 but the Board expressed the opinion that the work should be carried on with Rs. 50,000 already sanctioned and that when further money would be required the Board would consider the same. On the 16th October, 1939, a resolution by circulation was passed by a majority of trustees under clause 24 of the Deed of 1934, authorising the Managing Trustee to sell Government Securities of the value of Rs. 50,000. This resolution was not, however, signed by Keshardeo. On the 16th October, 1939, a resolution by circulation was passed by a majority of trustees under clause 24 of the Deed of 1934, authorising the Managing Trustee to sell Government Securities of the value of Rs. 50,000. This resolution was not, however, signed by Keshardeo. Correspondence passed between the attorneys of the Managing Trustee and the Public Debt Office regarding the transfer of the Government Securities to the names of the trustees and the correspondence was placed before the Board meeting held on the 28th January, 1940. Apparently there was difficulty in getting the securities transferred and in the meantime the Managing Trustee borrowed Rs. 30,000 to carry on the building works. At the meeting held on the 21st April,, 1940, Keshardeo having taken exception to the Managing Trustee's borrowing without the sanction of the Board, the Managing Trustee explained the difficulties in getting the securities transferred. After a heated discussion it was unanimously resolved, amongst other things, that the Managing Trustee be requested to expedite the sale of the Government Securities. 10. It was in these circumstances that the suit out of which the present appeal has arisen came to be filed. The Plaintiffs are four in number, namely, Radha Kissen. Chamria, Nandlal Bhowalka, Shyam Sundar Kanodia and Juthalal Baiti described as "trustees under a settlement of trust created by one Rai Bahadur Ramprotap Chamria deceased dated the 8th December, 1934." The Defendants are three in number, namely, Ratanlal Chamria and Keshardeo Chamria sued "for selves and as trustees of the said trust" and Sir Badridas Goenka described as "one of the Trustees of the said trust." After alleging that Ramprotap was the owner of the premises No. 178, Harrison Road and 71, Cross Street, that on the 27th August, 1917, Ramprotap had declared that the said premises would be held by him as trustee for religious and charitable purposes and in particular for the benefit of certain religious and charitable institutions established by him, that Ramprotap had executed a formal declaration of trust in respect of the said premises on the 8th December, 1934, whereby he appointed seven trustees named therein, that out of the income of the trust properties Ramprotap had acquired Government Securities of the face value of Rs. 1,30,000 particularly specified in paragraph 5 of the plaint which, although acquired in the name of Ramprotap, were acquired for the benefit of the trust and held by him as trustee and formed accretions to the trust properties and after referring to the death of Ramprotap leaving Ratanlal as his sole surviving descendant and maintaining that Ratanlal became a trustee in the place of Ramprotap and after staling that Ratanlal while admitting that the said Government Securities formed part of the trust properties had declined to endorse the same without a declaration being first obtained from the court that they were trust properties governed by the Deed of 1934 and that Keshardeo and Sir Badridas Goenka while admitting that the said Government Securities formed part of the trust properties had refused to join as Plaintiffs, The Plaintiffs claimed the following reliefs:-- (a) A declaration that the Government Promissory Notes mentioned in paragraph 5 hereof always formed and form part of the properties covered by the Deed of Trust dated the 8th December, 1934. (b) A declaration that the said Government Promissory Notes belong to and are vested in the Plaintiffs and the Defendants as trustees of the trust created by the said Deed of Trust dated the 8th December, 1934. (c) A decree that the said Ratanlal Chamria and, if necessary, the said Keshardeo Chamria do endorse the said Government Promissory Notes in favour of the trustees in the alternative that the Registrar of this Hon'ble Court do endorse, in such name or names as the Court may deem proper, the said Government Promissory Notes in favour of the trustees and (d) Costs of the suit. 11. All the three Defendants entered appearance and filed their respective written statements. The Defendant Ratanlal practically admitted all the averments in the plaint but maintained that the Government Securities should be vested in the trustees by in order of the Court and the endorsement should be by the Registrar. Sir Badridas Goenka filed a non-committal written statement apparently desiring to avoid taking sides and getting mixed up with the affairs of the Chamria family, Keshardeo filed a contentious written statement denying that Ramprotap was the owner of the two premises in question or had declared a trust in 1917. He referred to his Suit No. 183 of 1929 and the consent decree made therein on the 23rd May, 1930. He referred to his Suit No. 183 of 1929 and the consent decree made therein on the 23rd May, 1930. He alleged that disputes arose between him and Ramprotap relating to the division of the joint family properties and that in November/December, 1934. Ramprotap approached him for settlement of the disputes and on the 8th December, 1934, Ramprotap proposed him (Keshardeo) that if Keshardeo agreed to execute a trust deed on the lines suggested by Ramprotap, he (Ramprotap) would bring into hotchpoch all the properties secreted by Ramprotap and give up his claim to the Salkia Godown as his separate property and do certain other things. Keshardeo averred that he agreed to and did execute the deed of 1934 on condition that Ramprotap would do the things he promises to do. Then he alleged that Ramprotap having failed to carry out his promise he (Keshardeo) instituted Suit No. 1869 of 1937 for specific performance of the agreement or alternatively for cancellation of the deed of 1934. Keshardeo stated that he had no knowledge as to when and how the Government Securities were acquired or whether they were ever treated as trust properties and did not make any admission in that behalf. He denied that Ratanlal became or was entitled to be a trustee. In paragraph 17 of his written statement Keshardeo stated that there was no trust save and except as provided in the consent decree and the Plaintiffs were not entitled to the declarations claimed. 12. On the application of the Plaintiff Radha Kissen an order was made on the 8th August, 1940, giving leave to him to file an additional written statement by way of reply and directing the Registrar to endorse the Government Securities in favour of the trustees upon the latter's undertaking not to deal with the same until further orders of the Court and directing that this suit do appear on the warning list a fortnight after the re-opening of the Court after the then ensuing long vacation and that Keshardeo's Suit No. 1869 of 1937 be placed on the warning list immediately after this suit. 13. It appears that on the 26th April, 1941, Keshardeo's Suit No. 1869 of 1937 was, at the instance of Keshardeo, adjourned but this suit remained in the warning list. This suit eventually came up for hearing before McNair, J., on the 7th May, 1941. 13. It appears that on the 26th April, 1941, Keshardeo's Suit No. 1869 of 1937 was, at the instance of Keshardeo, adjourned but this suit remained in the warning list. This suit eventually came up for hearing before McNair, J., on the 7th May, 1941. When the suit was called on an application, apparently verbal, was made on behalf of Keshardeo for adjournment of this suit on the ground that his Suit No. 1869 of 1937 should be heard along with it. That application was refused and this suit was heard in the presence of Advocates for all parties including Keshardeo. No oral evidence was led by any party. The minutes of the proceedings of the Board meetings and some correspondence with the Public Debt Office were tendered and marked as exhibits. After hearing arguments McNair, J., delivered his judgment granting the declarations as prayed in prayers (a) and (b) to the plaint. Order having already been made directing the Registrar to endorse the Government Securities, no further order was made in terms of prayer (c) but the undertaking that the trustees would not deal with the securities was discharged. The Defendant Keshardeo has now preferred the present appeal from this judgment and decree of McNair, J. 14. The first point urged by learned Counsel for the Appellant is that the learned Judge should have adjourned the hearing of this suit until the disposal of the Appellant's Suit No. 1869 of 1937. I have already mentioned that by order made on the 8th August, 1940, that suit was directed to be placed on the warning list immediately after this suit and the two suits did accordingly appear on the warning list one after another. The Appellant, however, applied for and obtained an adjournment of his own suit. He did not care to have this suit adjourned at the same time. When this suit was called on for hearing Counsel for the Appellant orally applied for its adjournment. No affidavit appears to have been filed in support of that application for adjournment. The learned Judge refused the application and proceeded with the hearing of the suit and the decree, appealed from was made on contest. Learned Counsel for the Appellant did not retire from the case but took part in the proceedings. It is impossible, in these circumstances, to permit the Appellant to complain that his application for time was rejected. The learned Judge refused the application and proceeded with the hearing of the suit and the decree, appealed from was made on contest. Learned Counsel for the Appellant did not retire from the case but took part in the proceedings. It is impossible, in these circumstances, to permit the Appellant to complain that his application for time was rejected. In the absence of any affidavit setting forth any ground in support of the Appellant's application for adjournment the trial Judge had no other alternative than to reject the application. It is impossible to hold that the learned Judge wrongly exercised his discretion in rejecting that application. It is significant that up to this day the Appellant's Suit No. 1869 of 1937 has not been brought to a hearing. It is said that this was due to the fact that there have been several infructuous arbitration proceedings between the parties regarding the subject-matters of several suits including that suit. Even according to the dates given by learned Counsel for the Appellants the arbitration proceedings came to an end in May, 1945. No step appears to have been taken after that date. There is, therefore, good deal of force in the comments made by learned Counsel for the Respondents that the Appellant is not serious at all about his suit. In my judgment no ground has been made out for holding that the learned Judge was in error in refusing the Appellant's application for adjournment of this suit. 15. The main point urged in support of this appeal is that the trial Court was in error in granting the declaration in the form appearing in the decree appealed from. The decree as drawn up and filed incorporates a declaration that the Government Securities in question always formed and form part of the properties covered by the Deed of Trust dated the 8th day of December one thousand nine hundred and thirty four.........and that the same belong to and are vested in the plaintiffs and the defendants as trustees of the trust created under the said Deed of Trust. 16. 16. The objections formulated by learned Counsel for the Appellant are as follows :-- (i) that the Government Securities should not have been declared as having "always formed" part of the trust properties, (ii) that the decree should not have declared that the Government Securities "belong to and are vested in the Plaintiffs and Defendants as trustees of the trusts created tinder the said Deed of Trust" because (a) No trust was "created" by the deed of 1934; (b) the parties who executed that deed had no right or power to appoint new trustees as they purported to do; and (c) the trust properties had not been legally vested in all the Plaintiffs and the Defendants. 17. It is necessary to deal with these objections seriatim 18. Re (i): There is no dispute that the Government Securities now form part of the trust properties. The objection is to their being declared as having "always formed" part of the trust properties. The suggestion is that these Government Securities may well have been acquired out of the income of the joint properties which are the subject-matter of partition in Suit No. 183 of 1929 and Ramprotap or his representative or successor may have to account for the same in the partition suit. A declaration that these Government Securities "always formed" part of the trust properties will, it is apprehended, prejudice the Appellant in the partition suit. This part of the declaration, it is submitted, is not supported by any evidence on the record. 19. Reference has already been made to the minutes of proceedings of the Board meetings. It will be remembered that at the adjourned meeting held on the 19th August, 1938, Keshardeo proposed that accounts up to date should be taken from Ramprotap of the following things:-- (a) What is the cash balance in hand, (b) What is the Bank Balance, (c) What is the establishment, (d) What are the establishment charges, (e) What are the investment of the Trust, (f) What is the present income. 20. At the fourth meeting held on the 27th September, 1936, Keshardeo's representative proposed that Ramprotap should produce all title deeds and other papers and documents, etc. relating to the trust properties before the trustees and thereupon it was resolved that Ramprotap should produce before the trustees title deeds and documents relating to the trust properties at the next meeting. 20. At the fourth meeting held on the 27th September, 1936, Keshardeo's representative proposed that Ramprotap should produce all title deeds and other papers and documents, etc. relating to the trust properties before the trustees and thereupon it was resolved that Ramprotap should produce before the trustees title deeds and documents relating to the trust properties at the next meeting. It was also resolved at that meeting that Ramprotap should produce whatever accounts he wanted to submit within three months. Keshardeo's representative also insisted that Ramprotap should forthwith hand over the cash balance, bank balance and the investments of the trust to the trustees. But Juthalal Baiti suggested that the monies in the hands of Ramprotap should be made over to the trustees along with the accounts. The suggestion of Juthalal Baiti was directed to be carried out. At the fifth meeting held on the 31st December, 1936, Keshardeo's attorney requested Ramprotap to submit the account and make over the cash balance. Ramprotap filed an abstract of account from the 9th May, 1929 to the 31st August, 1935, and produced (i) title deeds, (ii) Government Securities of the face value of Rs. 1,30,000 and (iii) bank pass book showing a credit balance of Rs. 3,265-8-3 as on the 13th October, 1936. The resolution passed at that meeting regarding the Government Securities has already been set out in extenso. Reference has also been made to other resolutions touching these Government Securities passed at subsequent meetings. It is quite clear on these materials that Keshardeo or his representatives insisted on Ramprotap producing, amongst other things, the investments of the trust and Ramprotap produced these Government Securities as such investments and they have been treated as such by all parties including Keshardeo. There is nothing in the evidence to suggest even remotely that these Government Securities did not represent the investments of the surplus income of the trust, but were investments of the income of the joint family properties and were wrongfully utilised in liquidation of Ramprotap's liability to the trust estate for the surplus income of the trust properties appropriated by him. On the contrary the evidence is clear that Ramprotap was asked to produce the investments of the trust and he produced these Securities as such investments and all parties concerned accepted them as such. On the contrary the evidence is clear that Ramprotap was asked to produce the investments of the trust and he produced these Securities as such investments and all parties concerned accepted them as such. In view of the minutes Keshardeo cannot now be heard to say that these Government Securities did not always form part of the trust estate. 21. Re (ii): This objection is founded on three distinct grounds. The first ground urged in support of this objection is that no trust was "created" by the deed of 1934. The validity of this objection must depend on a true interpretation of the terms of the deed itself. The provisions of this deed have already been briefly summarised and it is not necessary to recapitulate them over again. The recitals make it abundantly clear that the deed proceeds on the basis of an already existing trust. According to the first recital the trust came into existence on or about the 27th August, 1917, when Ramprotap declared that the two premises which had been acquired and built by him would be held for religious and charitable purposes and in particular for the benefit of certain religious and charitable institution established by him. The trust being for religious and charitable purposes the provisions of the Indian Trusts Act, 1882, did not apply to this trust and the formalities required by secs. 5 and 6 of that Act were not necessary to have been complied with. It is nobody's case that Ramprotap created the trust by any written instrument so as to attract the provisions of sec. 17 of the Registration Act. Thus we start with what it- accepted by Keshardeo as a valid trust created by Ramprotap in 1917 in respect of the two premises "which had been acquired and built by him." Then came Keshardeo's partition Suit No. 183 of 1929 and the consent decree made therein on the 23rd May, 1930. Clauses 2 and 4 of the terms of settlement embodied in that consent decree recognised that a trust existed as from the 27th August, 1917. Clauses 2 and 4 of the terms of settlement embodied in that consent decree recognised that a trust existed as from the 27th August, 1917. The decree did not purport to create any new trust in respect of the two properties but those two properties were simply "declared as dedicated from the 27th August, 1917." This decree, therefore, negatived the claim of Keshardeo in the partition suit that these properties formed parts of the joint family properties and excluded it from partition. Clause 4 then proceeded to appoint four trustees. It next provided that the trustees should not be more than seven nor less than four. After providing that the expenses would be paid out of the income of the trust properties the 4th clause concluded by saying that a deed of trust would be executed by the parties. The trust having already been created by Ramprotap in 1917 and declared by the consent decree of 1930 there was no room for the creation of a new trust by the parties to the partition suit. The "deed of trust" contemplated by clause 4 of the consent decree was, therefore, to be a formal deed recording and evidencing the creation of the trust in 1917 and the recognition thereof in 1930 and providing for the carrying out of that existing trust and regulating its management. Indeed the final recital in the deed of 1934 recognised that it was "necessary that a formal scheme should be framed to carry out the trust." It is quite clear from the sequence of the recitals that the immediate purpose of the deed of 1934 was to record the creation of the trust in 1917 and its recognition in 1930 and to frame a scheme for carrying out that existing trust. This deed by its terms did not purport to create any new trust. In this view of the matter the use of the word "created" in the decree under appeal is not quite accurate and this defect may well be rectified by substituting the word "managed" for the word "created." 22. The second ground urged by teamed Counsel for the Appellant is that none of the parties who executed the deed of 1934 had any right or power to appoint new trustees. The second ground urged by teamed Counsel for the Appellant is that none of the parties who executed the deed of 1934 had any right or power to appoint new trustees. The argument is that a trust having been declared and four trustees having been appointed by the consent decree of 1930 none of the parties to the partition suit had any further power to appoint additional trustees and the right of appointment of new trustees by way of addition or substitution vested in the four trustees appointed by the consent decree, I am unable to accept this argument and for the following reasons. 23. Appointment of new trustees may be made by the Court or out of Court. We are not here concerned with any appointment by the Court and, therefore, the provisions of sec. 35 of the Trustees Act, 1866 or those of sec. 74 of the Trusts Act, 1882 or their applicability and scope need not be considered in this case. The privilege of appointing trustees out of Court primarily belongs to the author of the trust. Ordinarily the author of the trust appoints a trustee or trustees at the time of the creation of the trust. He may constitute himself as the sole trustee or appoint himself and one or more strangers as trustees or appoint only strangers as trustees. If a vacancy or disqualification occurs the author of the trust retains the power of appointing a new trustee or trustees out of Court unless he has expressly parted with such power in favour of some other person nominated by him by the instrument of trust. This position is recognised by sec. 73 of the Trusts Act, 1882. The power of appointment is given by that section to certain persons in a certain order. Thus the right of appointment is given first to the person nominated for that purpose by the instrument of trust (if any). 24. If there be no such person or no such person able and willing to act the right is given next to the author of the trust if he be alive and competent to contract and failing him to certain other persons. 24. If there be no such person or no such person able and willing to act the right is given next to the author of the trust if he be alive and competent to contract and failing him to certain other persons. I am referring to this section only to emphasise that the right of appointment of new trustees belongs to the author of the trust unless he has by the instrument of trust nominated some other person to exercise that power. The provisions of sec. 73 of the Trusts Act, 1882, however, limit the power of appointment out of Court only to cases where a vacancy or disqualification occurs in the manner therein specified. Even the power of Court to appoint new trustees under the Trusts Act 1882 is by sec. 74 limited to cases where a vacancy or disqualification occurs in the manner specified in sec. 73. Apart from secs. 73 and 74 there is no other provision in the Trusts Act, 1882 authorising the appointment of additional trustees out of Court or by the Court in any other circumstance such as there is in secs. 36 (6) and 41 of the English Trustee Act, 1925. Is it to be inferred from this absence of express provision in the Indian Trusts Act, 1882 that in a case governed by that Act there is no right of appointment of additional trustees in circumstances other than those mentioned in sec. 73 of that Act? If at the time of the creation of the trust the author of the trust appoints some strangers as trustees or appoints himself and some strangers as trustees and the trust properties are transferred to the trustees so appointed then, unless the author by the instrument of trust expressly reserves the power to remove trustees or to appoint trustees by way of addition or substitution, it may be that he cannot remove any trustee or appoint any new trustee by way of addition or substitution except in circumstances specified in sec. 73 of the Indian Trusts Act, 1882. But suppose the author of the trust constitutes himself as the sole trustee at the time of the creation of the trust, is he precluded, in the absence of express reservation of power in that behalf, from associating other persons with him by appointing additional trustees? 73 of the Indian Trusts Act, 1882. But suppose the author of the trust constitutes himself as the sole trustee at the time of the creation of the trust, is he precluded, in the absence of express reservation of power in that behalf, from associating other persons with him by appointing additional trustees? We have not been referred to any reported decision which answers the question in the affirmative. 25. The case before us relates to a trust for religious and charitable purposes and is, therefore, not governed by the Indian Trusts Act, 1882. The argument founded on the absence of any express provision in that Act authorising the appointment of additional trustees in circumstances other than those specified in sec. 73 is not, therefore, available in this case and we have to proceed on general principles. It must be remembered that Ramprotap created the trust in 1917 and constituted himself as the sole trustee, for it is nobody's case that he appointed any body else as trustee in 1917 when the trust was created. Is there anything in general principles which could prevent Ramprotap, the author of the trust and the sole trustee from appointing additional trustees to act jointly with himself? Again we have not been referred to any reported decision which lays down any such general principle. Further if there were any such general principle, how could three additional trustees be associated with Ramprotap by the consent decree of 1930 in Keshardeo's partition Suit No. 183 of 1929? The Appellant maintains that the appointment of four persons as trustees by the consent decree was valid. The question is: Who made the appointment? The parties to that suit, other than Ramprotap, were strangers to the trust. The trust was created by Ramprotap in 1917 and he was the sole trustee. The other parties to the partition suit being strangers to the trust had no power whatever to appoint any additional trustee. Therefore the consent decree must be construed as if Ramprotap who was the author of the trust and the sole trustee appointed three new trustees to act jointly with himself. In order, therefore, to maintain that the appointment of trustees by the consent decree was valid the Appellant must accept the position that the appointment of additional trustees was by Ramprotap alone. In order, therefore, to maintain that the appointment of trustees by the consent decree was valid the Appellant must accept the position that the appointment of additional trustees was by Ramprotap alone. This necessarily means that the Appellant must concede that there is no general principle which prevents the author of the trust who is also the sole trustee from appointing additional trustee to be associated with him. If Ramprotap had authority to appoint three new trustees to act with him was there anything to prevent him from appointing another three trustees? It is said that by the consent decree the trust properties vested in the four named trustees including Ramprotap and, therefore, Ramprotap alone had no further power to appoint more trustees. Clause 4 of the consent decree did not, as I have said, purport to create any new trust but simply appointed four trustees and at the same time provided that the trustees should not be more than seven nor less than four. Therefore the appointment of four trustees was not wholly unqualified. That appointment was made subject to the power of raising the number of trustees to seven. There was in clause 4 no word of vesting of the trust properties in the four trustees and as will be seen later on there could be no automatic vesting of the trust properties in the new trustees on their appointment. Therefore the trust properties remained vested in Ramprotap alone. Who could, in such circumstances, raise the number of trustees from four to seven? The answer must be that Ramprotap, the author of the trust and the only trustee in whom the trust property was then vested, was the person who could do so unless he had parted with that power in favour of any body else. Clause 4 of the consent decree concluded by authorising the parties to the partition suit to execute a deed of trust. If the last sentence of clause 4 of the consent decree be construed to mean that Ramprotap authorised the parties to raise the number of trustees from four to seven then the parties had the power to do so. Therefore, either the parties to the partition suit or Ramprotap alone had the power to appoint new trustees so as to raise the number of trustees to seven. Therefore, either the parties to the partition suit or Ramprotap alone had the power to appoint new trustees so as to raise the number of trustees to seven. The deed of 1934 was executed by Ramprotap, Keshardeo and Ratanlal by his mother and natural guardian. Therefore the appointment by that deed of seven trustees including the four named in clause 4 of the consent decree was valid. 24. The last ground urged by learned Counsel for the Appellant is that even if Ramprotap alone or all the parties to the partition suit had the power to appoint additional trustees, and they properly appointed additional trustees the trust properties have not been legally vested in the additional trustees and, therefore, there should not have been any declaration that the Government Securities belonged to and were vested in ail the Plaintiffs and all the Defendants as trustees. The argument first is that the trust properties had by the consent decree vested in the four trustees named in clause 4 thereof and, therefore, they alone could, and the parties to the suit could not, vest the trust properties in the three additional trustees appointed by the deed of 1934. The second line of argument is that the deed of 1934 did not by its terms operate to vest the trust properties in the new trustees. 25. There can be no doubt that on the appointment of new trustees either by way of addition or substitution the trust properties should be made to vest in them jointly with other trustees, if any. In early times in England this vesting had to be effected by a conveyance or assignment by the person or persons having the legal title in the trust properties. Sec. 34 of the Conveyancing Act, 1881 which was reproduced in sec. 12 of the Trustees Act, 1893 introduced a new and simple method of transferring trust properties to the new trustees by means of a vesting declaration without a format conveyance or assignment. Sec. 12 of the Trustee Act, 1893 has now been replaced and the law in England has been altered and extended by sec. 40 of the Trustee Act, 1925, Clause (b) of sub-sec. Sec. 12 of the Trustee Act, 1893 has now been replaced and the law in England has been altered and extended by sec. 40 of the Trustee Act, 1925, Clause (b) of sub-sec. (1) of that section provides that in the case of a deed made after the commencement of that Act, the deed shall, subject to any express provision to the contrary therein contained, operate as if it had contained such a declaration by the appointer extending to all the estates interests and rights with regard to which a declaration could have been made. Thus in England on the appointment of a new trustee out of Court there is now an automatic vesting of the trust properties in the new trustee without any conveyance or assignment or even a vesting declaration. In India the position appears to be different. The Trustees Act 1866 which gave power to the Court to make vesting orders need not be considered here, for we are concerned with vesting out of Court. Sec. 75 of the Trusts Act, 1882 introduced the principle of automatic vesting of the trust properties in new trustees. It will, however, be noted that the operation of that section is limited to cases where a new trustee is appointed out of Court under sec. 73 or by the Court under sec. 74. It has already been noted that appointment of new trustees can be made under those sections only when a vacancy or disqualification occurs in the manner specified therein. Therefore automatic vesting under sec. 75 does not take place when a new trustee is appointed otherwise than under secs. 73 and 74 and there has to be a vesting by transfer in such cases. In cases not governed by the Trusts Act, 1882 there is no provision for automatic vesting at all and in such cases there must be a vesting by transfer. This, I apprehend, is the law in India. 26. The case before us relates to a religious and charitable trust and is, therefore, not governed by the Trusts Act, 1882. Further new trustees were appointed not by way of substitution on the happening of any vacancy or disqualification. Therefore, there must be a vesting by transfer. As I have said, clause 4 of the consent decree of 1930 did not purport to create any new trust but only declared that a trust existed from 1917. Further new trustees were appointed not by way of substitution on the happening of any vacancy or disqualification. Therefore, there must be a vesting by transfer. As I have said, clause 4 of the consent decree of 1930 did not purport to create any new trust but only declared that a trust existed from 1917. It also appointed four persons as trustees subject in effect to a reservation of power to raise the number of trustees to seven. No words of transfer are to be found in clause 4. The declaration of an existing trust was followed by the word "the trustees hereby appointed being . . . ." Those words, in my opinion, only amount to appointment of trustees. To hold that they operated also to vest the trust properties in those named persons will be to hold that there was an automatic vesting by the very appointment itself. As I have pointed out, there must be something more than a mere appointment in order to vest the trust properties in the appointed persons. There is nothing more in clause 4. The result, therefore, is that the trust properties remained vested in Ramprotap alone who had become trustee in 1917 by his own declaration of trust. Ramprotap was a party to the deed of 1934. If that deed can be construed as operating to vest the properties in the six new trustees, then there can be no question that vesting was done by a person who had the legal title in the trust properties. In this view of 'the matter the first part of the argument that none of the parties to the deed of 1934 could legally vest the trust properties in the new trustees must be rejected. 27. The second part of the argument is directed to the question whether the deed of 1934 operates to vest the trust properties in the new trustees named therein. The answer to this question must depend on a true construction of the language used in the deed. The recitals clearly show that this deed was executed to implement the directions contained in clause 4 of the consent decree. The answer to this question must depend on a true construction of the language used in the deed. The recitals clearly show that this deed was executed to implement the directions contained in clause 4 of the consent decree. I have already stated that clause 4 contemplated a deed not for creating a new trust for that clause recognised that a trust already existed but for recording and, evidencing the creation of the trust in 1917 and its recognition by the consent decree of 1930 and for making, provisions for carrying out that trust. The last recital also supports the view that the immediate purpose of the deed was to frame a formal scheme for carrying out the trust. The deed was executed by till the parties to the partition Suit No. 183 of 1929 including Ramprotap, the author of the trust and the original sole trustee in whom the trust properties still remained vested. There can be no doubt that Ramprotap alone was legally competent to vest the trust properties in the new trustees. The only question is whether there are words in the deed of 1934, which may be regarded as bringing about such vesting. By clause 2 of the deed the word "Trustees" means the Board of Trustees for the time being of the Gorakhram Ramprotap Trust and the words "The Trust properties" mean the premises No. 178, Harrison Road, and 71, Cross Street, the properties set out above (i.e., in the fifth recital) and any other property or properties that may be held for the time being for the trust. Clause 4 of the deed provides that all properties, assets and institutions shall be held, established and managed in the name of "Gorakhram Ramprotap Trust." If will be noticed that the word "held" is used in both clause 2 and clause 4. The question is : Held by whom? Who holds the trust properties? The answer surely is that they are held by the trustees which expression in this case means the Board of Trustees for the time being of Gorakhram Ramprotap Trust. Clause 5 prescribes the powers of the Board of Trustees. The question is : Held by whom? Who holds the trust properties? The answer surely is that they are held by the trustees which expression in this case means the Board of Trustees for the time being of Gorakhram Ramprotap Trust. Clause 5 prescribes the powers of the Board of Trustees. Those powers include the power to invest the corpus or income of the trust properties, to vary investments to sell or otherwise deal with corpus, to compromise compound or abandon any debt, claim or dispute relating to trust properties, to let out immovable properties and so on. These powers are usually those that are exercisable by owners. Clause 16 provides for payment of the compensation money to the trustees on the acquisition of any of the trust properties by any public body. Clause 6 prescribes the number of trustees and clause 7 names seven persons as the first trustees. This appointment of trustees coupled with the direction that all the trust properties shall be "held" in the name of the Gorakhram Ramprotap Trust that the compensation money would be paid to the trustees on acquisition and the powers given to the trustees clearly amount to vesting of the trust properties in these trustees. Unless the trust properties are so vested in the trustees how can they be "held" in the name of Gorakhram Ramprotap Trust and why should the payment of compensation be made to them and how can the extensive powers be exercised by the trustees? It is true that the words "grant, transfer, convey and assign" are not used in the deed but that is not necessary and it is sufficient if on a construction of the deed as a whole it operates to vest the trust properties in the trustees named in the deed. There is much more in this deed than a mere appointment of new trustees and much more than there is in clause 4 of the consent decree. This deed, by its own terms to which I have referred, clearly, in my opinion, operates to vest the trust properties in the trustees named therein. 28. The Appellant claims to be one of the trustees in whom the trust properties are vested. There was no vesting of the trust properties by the consent decree. The only document which could vest it in him along with others is this deed. 28. The Appellant claims to be one of the trustees in whom the trust properties are vested. There was no vesting of the trust properties by the consent decree. The only document which could vest it in him along with others is this deed. The Appellants has, therefore, derived his title, if at all, by this deed alone. In any event he has acted as trustee under this deed and exercised powers conferred on trustees by it as the minutes amply show. He cannot now be permitted to assert that he has derived his title as trustee independently of this deed. The first part of the declaration appearing in the decree uses the word "covered." I do not think there is any thing wrong in the use of that word as descriptive of the properties the management of which is regulated by the deed. The second part of the declaration uses the word "created." I have already indicated that the deed of 1934 did not "create" any trust and, therefore, use of that word in the decree was not appropriate or accurate. The word "created" should, therefore, be substituted by the word "managed." Subject to this verbal alteration I uphold the decree and dismiss this appeal with costs. Certified for two Counsel. Harries, C.J. I agree.